R v Delly [2003] ACTSC 113 (19 December 2003)

Last Updated: 28 January 2004

THE QUEEN v ANDRONIKOS THEODORE DELLY

[2003] ACTSC 113 (19 December 2003)

CRIMINAL LAW - application for permanent stay of criminal proceedings - charge of theft - alleged involvement in unlawful sale of motor vehicle by accused's father - whether absence of admissible evidence from father renders fair trial impossible - whether inevitable that a properly instructed jury would enter verdict of acquittal - meaning of `dishonestly' in charge of theft - crown must positively prove existence of belief held by accused that they had no legal right to deal with goods.

Uncollected Goods Act 1996 (ACT), ss 5(b), 7, 24

Mercantile Law Act 1962 (ACT), ss 18, 20, 22(3)(b), 22(5)

Crimes Act 1900 (ACT), ss 86(3), (4) & (5), 84

Theft Act 1968 (UK),

Crimes Act (Vic) 1958 (VIC), ss 72(1), (2)

Peters v R [1998] HCA 7; (1998) 192 CLR 493

R v Salvo [1980] VR 401

R v Feely [1973] 1 QB 530

Bonollo v R [1980] 2 A Crim R 431

R v Brow [1981] VR 783

Mattingly v Tuckwood (1989) 88 ACTR 1

R v Ghosh (1982) QB 1053

Macleod v R [2003] HCA 24; (2003) 197 ALR 333

No. SCC 125 of 2002

Judge: Higgins CJ

Supreme Court of the ACT

Date: 19 December 2003

IN THE SUPREME COURT OF THE )

) No. SCC 125 of 2002

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ANDRONIKOS THEODORE DELLY

ORDER

Judge: Higgins CJ

Date: 19 December 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be a permanent stay of proceedings on the indictment.

1. This is an application by the accused, Andronikos Theodore Delly, for a stay of proceedings upon an indictment dated 21 February 2003. The accused was arraigned and entered a plea of not guilty to the single count contained therein on 7 October 2003, that was -

That on the 17^th day of April 2001 at Canberra in the Australian Capital Territory [the accused] stole a Toyota MR2 Coupe belonging to Allen Vong.

2. The Crown case related to the involvement of the accused in certain dealings between Mr Vong and the accused's late father, Paul Andronikos Delly.

3. The primary facts are not in dispute. Mr Paul Delly and Mr Vong had been business and social acquaintances over many years prior to the date of the alleged offence. The accused was the proprietor of a car yard in Fyshwick called "Beyond 2000 Car Sales". As such he held a motor dealer's licence. The business was in truth, however, controlled by Mr Paul Delly.

4. Mr Vong, an accountant, gave evidence that he came into possession of the MR2 from a Dr Law who had left it with him indefinitely. That was in 1995 or 1996. Towards the end of 2000, the MR2 developed a fault. Mr Vong engaged the services of the accused to start the car. The accused was a client of Mr Vong. He did so, with some difficulty. The back windscreen was broken and Mr Vong asked the accused to fix it. The accused agreed to fix and clean the car and, as Mr Vong was thus without a car, he loaned him a 12 seater bus.

5. As at the date of the committal, Mr Vong retained possession of the bus. He deposed that he gave a cheque to Mr Paul Delly to pay for the windscreen of the MR2. He conceded that he had not said that the MR2 belonged to Dr Law. However, he said that he had told Mr Paul Delly and the accused that the car did not belong to him, but to one of his clients. The accused did not concede that he was aware of that detail.

6. Thereafter, Mr Vong said, he attempted to collect the car, telephoning the accused and his father, though it appears he did not speak to either of them until the end of 2000 when he met with Mr Paul Delly.

7. The only contact, after that between Mr Vong and either of the Dellys, was via a letter from Mr Paul Delly to Mr Vong regarding Mr Vong purchasing the bus. Mr Vong said that he replied, disputing that he wanted to buy the bus and asking for the MR2 back.

8. In early April 2001, Mr Vong met the accused by chance at the Hyatt Hotel. The accused said that Mr Vong should deal with his father concerning the MR2 and the bus.

9. Then, following something he was told, Mr Vong attempted to contact Mr Paul Delly and the accused but failed to get hold of them. He then complained to police and, as a result, attended another car yard belonging to a Mr Christopher Clearihan. The latter told Mr Vong that he had fixed the MR2 and had spent $700 on it. He said he had bought the car from the accused's car yard.

10. There was a letter dated 14 March 2001 from Mr Paul Delly with a reply by Mr Vong dated 21 March 2001. A further letter was apparently sent to Mr Vong from Mr Paul Delly on 23 March 2001, and was likewise responded to on 28 March 2001. Those letters were in the following terms.

11. 14 March 2001 (Exhibit B) -

Dear Allen,

It was our mutual understanding that the Toyota Hi Ace Van would be borrowed by yourself and returned in a couple of days, it has been over 1 month since you took possession of the van. It was later agreed upon that the vehicle would be bought by you for the sum of $4,500.00.

I have repeatedly attempted to contact you with no success, it is now my intention to notify you that the vehicle is to be either returned and outstanding monies be forwarded including the use of the van accruing at a discounted rate of $95 a day as well as storage costs of $15 a day for the Toyota MR2 rego no. YUS 438.

As per your information the vehicle is being utilised by your associates in Shepparton for commercial purposes, we are concerned as to the legal ramifications regarding insurance and road traffic infringements that may be incurred.

I would therefore ask that you would contact me in writing to discuss settling this matter or I will have no choice but to execute the disposal of the Toyota MR2 under the Act of uncollected goods and sell your vehicle to recover costs.

I await your earliest reply.

Kind regards,

Paul A. Delly

12. 21 March 2001 (Exhibit C) -

Hi, good morning!

Thank you for the letter of 14/3/01. The Van was returned to you today but you refused to take possession.

Your information is incorrect.

I borrowed the van from your son and mentioned to him as to whether the van was for sale. He indicated it was for around $2999.

While I was using the van your son had the loan of my MR2 as per our previous arrangements. You use my MR2 and I use your Van. Quoting you "You break it you fix it."

To date we have fixed the radiator, water pump and transmission. You have fixed the rear glass of the MR2.

When it came time to return the Van you then indicate a price of over $6000. You now indicate a price of $4500. I have already been quoted a price of $2999 from your son.

Please indicate your intention by return mail so that we may progress the matter.

Meanwhile it will be appreciated if you could settle your accounts.

Allen Vong

13. 23 March 2001 (Exhibit A) -

Dear Allen,

I respond to your fax dated 21/3/01 with thanks.

Primarily let us address your quasi accounts which both of us know is unfounded and really sour grapes unbecoming of your character and our friendship.

As to the van in question which was returned some 32 days later from the date of your weekend borrowing:

A: In excess of 5000 km run up on the speedometer.

B: Both front tyres have been scrubbed out and need replacing.

C: Dints in the front rear top and rear back roof and left hand side of the van.

D: Infringement notice for running a red light (7/3/01) while I was hospitalised.

As to your fixing the radiator and water pump etc on the van this was done whilst in your possession and on your own volition without any consultation with us.

I have on a daily basis including my son Andronikos have telephoned you as many as 3 to 4 times a day, spoke to your staff including Liz regarding our purchase arrangement which I discounted from the original $6,999 price tag to a special price for you of $4,500 which you agreed to and promised you would pay me the following week after having received your initial cheque for $175 for the MR2 rear window.

I value our friendship and would hate this small matter to come between us, but you know things are tough and for this reason given in my letter dated 14/8/01 I have no choice but to wholesale the MR2 and recover costs.

I trust common sense will prevail and be assured that I am happy to talk to you about anything at any time.

Best Regards

Paul A Delly

14. 28 March 2001 (Exhibit D) -

Paul Delly

I had dinner with your son last night and we discuss about the MR2. He stated the matter was between me and you. He said for me to call on you to arrange to finalise the matter.

I called on you today but you were not available to talk to me.

I have faxed this to you to ensure you got my message.

Please call to settle the matter ASAP as I think the bill needs to be addressed.

Allen Vong

15. That correspondence evidences a state of disputation between Mr Paul Delly and Mr Vong. It does not follow, of course, that the assertions made by either are factually or legally valid.

16. Nevertheless, it is clear that Mr Paul Delly was asserting the right to sell the MR2 to recover costs. It was also acknowledged by Mr Vong that Mr Paul Delly was, in effect, the controller of the business the accused ran. This is, indeed, confirmed by the terms of exhibits B and A.

17. Further, though Mr Vong did not see it, there was a notice published in the Canberra Times on 21 March 2001 stating -

THIS is to notify that the owner or any interested party of the Toyota MRZ (sic) reg YSU-438 that the said motor vehicle is to be sold after expiry of 21 days. Under the Act of Uncollected Goods the vehicle will be sold to recover outstanding costs. Any further contact should be forwarded in writing to Beyond 2000 Car Sales and sent to 34 Pirie St, Fyshwick ACT 2609.

18. On Mr Paul Delly's instructions, and on his behalf, the accused sold the MR2 to another motor dealer, Mr Chris Clearihan trading as Braddon Auto Mart. This sale was evidenced by an "Inter-Dealer Disposal Notice" dated 24 April 2001.

19. It should be added that it was also apparent that Mr Vong was asserting financial claims against both the accused and Mr Paul Delly for accounting services rendered.

20. Mr Clearihan confirmed the sale of the MR2 and that the cheque for it was made out to Mr Paul Delly. He on-sold the vehicle, though aware of the dispute concerning ownership, on 22 May 2001, to a third party. Mr Paul Delly was named as the last owner of the vehicle in the "Inter-Dealer Notice".

21. There had been no admission by the accused that he knew that Mr Paul Delly had no right to cause the vehicle to be sold in satisfaction of his financial claims on Mr Vong.

22. On 4 September 2002 the accused took part in a record of interview in relation to these matters. He made the following statements relevant to his knowledge and intention -

A34

... I don't believe I have committed a crime. ...I basically just did what my father told me, instructed me to do and, um, that I did what he told me to do.

A35

...Allan (sic) sort of worked with my father to pay for a favour, he contacted me saying he wanted, um, to pick up his car and fix his car.

A38

... I spoke to Allan (sic). Ah, he said that he - he had problem with his car and wanted me to fix it for him.

23. He agreed that he caused the car to be collected from Mr Vong. He had assumed it was Mr Vong's car but agreed that Mr Vong had not asserted that it was. He had not heard of Dr Law. He believed that his father rang Mr Vong about four weeks later when the car was repaired. He recalled that Mr Vong attended his premises -

A75

... then he came over ... he saw the car was ready all clean ... he took various stationary goods ... I showed him what I'd done and, um, I said to him, "This is a nice, a very nice car, ... if you want to sell it, it'd be a good car to sell." He goes, "How much can I get for it?" Ah, and I said, um, "My opinion, um, private sale you'd probably get eight to ten thousand dollars for it. Wholesale probably around six." He and, um, he expressed to me that he wanted to sell it you know, but, "How much can you definitely get for me?" And I said, "Well that's you know, that's - I can't tell you how much I can definitely get for it, but, ah, about eight to ten thousand dollars, um, if you give me some rego and things like that."

A78

... he left and then, um, within this time because it was a long time ago but, I don't fully remember what happened. He borrowed the, um, van off my father. It was a big Toyota Hiace van...

Q79

Who owned the van?

A79

My father owned the van and he lent it to him and, um, he had it for a long time. Ah, he had maybe a couple of months he had it while we - while we had his car ...

24. He claimed that he rang Mr Vong's office frequently from about December, as did his father, in an attempt to resolve the situation with the two vehicles. He was also asked in relation to Mr Vong -

Q98

What other moneys did he owe you?

A98

Um, well for there's - you can say general storage and probably be - property storage, things like that. I - I mean, I wasn't like I wasn't in charge of storage because he, um, he was gonna buy - he was going to, um, let me sell his car and I was - I was gonna make money from that.

25. He further stated that his father had told him that he had discussed with Mr Vong the purchase of the van by Mr Vong and the selling of the MR2.

26. It was after the new year (2001) that the exchange of correspondence referred to above took place. The accused's understanding of the effect of that correspondence was expressed as follows -

Q139

So what happened after that?

A139

Ah, we got the letter, I was trying to respond to him, ah, and in all these accounts we got, I think we owed him - somebody owed him money and, um, then my father wrote a second letter ...

Q140

Right

A140

Um, there was no response from that. And I - I recall from the second letter we said that, um, we basically - "If you did not contact us or come to an arrangement, ah, we would sell his car."

Q141

Why?

A141

Now this is where I was having arguments with my father. He was - at that - in this period it was - I never would have mind but he ran a car yard, um, or with Henry and, um, he told my father that there's a Uncollected Goods Act. But - but I've heard of this Act but I don't know the process what you have to do and what is applies to I - I don't really know. And he said if you do this, this, this, this, this, this to my father, um you can actually take possession of a car and sell the car. And my father went, "Oh, yes, I'll - I'll do this." "Andronikos we'll rule like this before we write letters - yeah, write the letters to him and if he doesn't respond we can sell his car." And but then I get into big arguments with my father and I said to him, "Ah, I don't think this is straight forward - I don't think you can do this." He said, "Yes you can, yes you can, Uncollected Goods Act."

Q142

Why did - why did you think it wasn't - wasn't right to do it?

A142

It was just too - too easy to him, like I mean, I - I'm met another mechanic who had done this, ah, the cars were left twelve months, no one had picked them up and he had taken possession of the car. I know you could do it but I didn't know how it applied and how you applied it.

Q143

H'mm

A143

And, um, but I told my, ah, I told my father it doesn't sound right. "It's - that's too simple, don't do this." He goes, basically told me just shut up, "Do what I tell you." Um, so I just you know, a couple of times I'd be over, even before, during and after I said this is not right. Um, I didn't like this, you know.

Q144

And what did you go - well tell me the story, you can go on with it but continue on he won't let you go?

A144

Okay, yeah as he said, it was just - didn't feel right to me. Ah, I can't - but at various times I said a big argument with my father, yelling and screaming matches saying, um, "I don't think this is right." And well, "This - Neville said he could do this." Ah, "Yeah, we're - that's what we're gonna do."

27. The accused agreed (A145 - 146) that he had not sought advice on the proposal from the Office of Fair Trading. When asked about the sale to Mr Clearihan, the accused said he obtained his father's agreement to accept $6000 for the MR2. At Q187 he was asked -

But you said before you didn't think it was right, why do you think it's right now?

A187

I didn't think it was right then either.

28. At Q205 the issue was referred to again -

Okay you still said before I still have the problem with the whole thing, you say it's not right but you're still - you're still banking in your bank account, you're still taking the money. At what stage - at what stage do you think it was gonna be okay?

A205

... I was sort of desperate I didn't have any option and, ah, although I thought it was wrong myself, ethically at least, I wasn't sure if it was legally wrong, but I knew I definitely it was ethically wrong.

29. Further at Q210 -

Why didn't you say to him, "Dad this is not right, don't do it?"

A210

I did. Well I told him I go - it didn't sound right to me. I - I don't think it's a good idea. I said, "You've - you've known Al a long time. You shouldn't do this," and I was just shouted down, um, nothing I could do I mean I ...

30. The issue received further attention at Q258 and 259 in the context of the lack of registration documentation.

Q259

Yeah

A259

You know, my father said, "It's right, it's right, it's right." It - where - where - where you know, the more he - "Uncollected Goods Act whatever was it applies in this situation. Yeah, we're - we're in the right."

31. The accused said that he knew that "Neville Dibird" had advised that the procedure under the Uncollected Goods Act was to put a notice in the Canberra Times warning that the car would be sold if the claims were not met (Q276).

32. That is the totality of evidence upon which the prosecution relies. It is possible that Mr Vong had disclosed to both the accused and his father that Dr Law (or "a client") was the beneficial owner of the vehicle, but it is not clear that they correctly understood the nature of Mr Vong's interest in the vehicle. Mr Vong had acted as if he was the beneficial owner. He certainly asserted and exercised the right to part with possession of the vehicle and had surrendered that possession to Mr Paul Delly for work to be done by the accused. It may be that the Dellys were ceded joint possession but it cannot be established that the accused believed that it was him and not his father who was the principal in the arrangement with Mr Vong.

33. Moreover, the prosecution also cannot establish that Mr Paul Delly, at the stage when the car was sold to Mr Clearihan, did not believe he could legally sell Mr Vong's motor vehicle to satisfy the claims he asserted against Mr Vong. Nor can it be concluded from the accused's statements to police that he positively believed that his father's proposal was legally wrong. It could be concluded that he believed it to be "unethical", at least in the case of a person who was a personal friend.

THE UNCOLLECTED GOODS ACT 1996

34. The abovementioned Act was in force at the relevant times, in relation to goods in the possession of a person which belonged to another person.

35. Section 5(b) of the Uncollected Goods Act 1996 (the UG Act) deems goods to be "uncollected goods" if, inter alia -

... the possessor has a lien on the goods under the Mercantile Law Act 1962 and a notice of intention to sell the goods has been given in accordance with subsection 22(2) of that Act, but the charges stated in the notice have not been paid by the day specified in the notice.

36. Certainly, apart from the lien available to a repairer of goods, s 18 of the Mercantile Law Act 1962 (the ML Act) confers a lien on a "warehouseman", described in s 17 as being "a person lawfully engaged in the business of storing goods as bailee for hire or reward". It is, of course, possible that, if such a lien had arisen, it was rendered void by s 20 of the ML Act. Certainly, under s 22 a warehouseman

(1) ... may, in addition to any other remedy provided by law for the enforcement of liens or for the recovery of warehouseman's charges, issue a notice of intention to sell the goods. (my emphasis)

37. That notice is to be given to the alleged debtor. Exhibit B is arguably such a notice. It may be argued that the notice was not sufficiently clear and detailed to comply with s 22(3)(b) and it may well have fallen foul of s 22(5) -

This section applies only to cases in which some part of the charges in arrear are in respect of a period more than 12 months prior to the date upon which notice of intention to sell is given.

38. However, whatever other rights may have been called upon by Mr Paul Delly, he expressly purported to raise "uncollected goods". That invoked Division 2 of the UG Act.

39. Section 7 thereof required notice to be given to the owner of the goods "to collect the goods within seven days of the date of the request". Exhibit B does not impose such a time limit but, otherwise, would arguably comply with s 7(2), although it could be regarded as insufficiently detailed. A newspaper advertisement is not required unless the "possessor" lacks an address for the owner. Exhibit E(2) is less detailed than Exhibit B and, at least arguably, fails to comply with s 7 of the UG Act.

40. If goods have become "uncollected goods" then they may be disposed of pursuant to Part 3 of the UG Act. However pursuant to s 24 -

Goods of significant value [that is, more than $500 in value] may be disposed of by public auction after 3 months.

41. That clearly was not done. However, the UG Act does, if its provisions are complied with, enable the possessor to pass good title to the goods to a purchaser unburdened by any "mortgage, lien or charge" of which that purchaser was not aware.

42. It is clear enough that Mr Paul Delly's view of his rights in respect of the MR2 were acquired by means that did not include official advice from the Fair Trading Office for example, or legal advice from a qualified person. However, it is impossible to show that his belief, even if mistaken, was a sham. The possibility that Mr Paul Delly genuinely believed that he could direct the disposal of the MR2 as he did was an hypothesis that could not be rejected. Indeed, it seems to me likely that he did so believe.

43. Is there evidence that the accused did not accept Mr Paul Delly's assertions about the legality of the course he proposed to take? As noted, it is possible to show the accused regarded the proposal as unethical but not that he regarded it as unlawful. It is certainly open to conclude that the accused was not persuaded positively, as Paul Delly appears to have been, that it was lawful to sell the MR2 as the latter had proposed.

THE SUBMISSIONS

44. The accused submits that the absence of admissible evidence from Mr Paul Delly so disadvantages him that a fair trial is not possible. There are statements from Mr Paul Delly in the form of a draft annexed to an affidavit of Mr Jeffrey Silk, the accused's solicitor, and this had been dictated to the accused, though it was consistent with statements made to Mr Silk by Mr Paul Delly during 2002. Those statements were consistent also with statements made by Mr Paul Delly to Mr Robert Clifford of the Office of Fair Trading.

45. It seems to me, therefore, that it would not be open on the Crown case, as reasonably construed, for a reasonable tribunal of fact to conclude that Mr Paul Delly had the necessary intent to support a charge of theft.

46. Mr Whybrow, for the accused, submits that the facts as so revealed would "exonerate" the accused in that it would not be possible for the Crown to exclude the hypothesis that the accused's knowledge and intent was not "dishonest".

47. Ms Whitbread, for the Crown, submits that the test for dishonesty is, firstly, an objective one. That is, was what the accused did dishonest by community standards? Then, if that be so, the next question is whether the accused's state of mind satisfied the test provided in subsections 86(3), (4) and (5) of the Crimes Act 1900 (ACT Crimes Act). For present purposes, the only parts of those sub-sections that are relevant are -

(4) For this part, the appropriation by a person of property belonging to another person shall not be regarded as dishonest if -

(a) he or she appropriates the property in the belief that he or she has a lawful right to deprive the other person of the property on behalf of himself or herself or of a third person.

48. That is relevant to the definition of "stealing" in s 84. That is -

For this part, a person shall be taken to steal if he or she dishonestly appropriates property belonging to another person with the intention of permanently depriving that other person of that property.

49. The Crown and accused agree that dishonesty is the contentious element. The Crown submits that it needs to prove no more beyond the objective test that the accused had no positive belief that what he did was "right", and that his statement that what his father asked him to do was "not right" is sufficient evidence to support that finding.

50. In reply Mr Whybrow, for the accused, submits that the correct test for dishonesty is that accepted by the High Court in Peters v R [1998] HCA 7; (1998) 192 CLR 493, and that the facts asserted by the Crown do not meet it. Mr Whybrow disputes also that the accused has any onus to prove, as the Crown appeared to submit, the existence or possible existence of a positive belief in terms of s 86(4)(a) of the ACT Crimes Act.

THE TEST FOR DISHONESTY

51. In R v Salvo [1980] VR 401, the accused allegedly purchased a vehicle from K, with the intention of stopping payment on the cheque he offered in exchange. A vehicle had been sold by K to S in an earlier transaction. It had belonged to a finance company, though the encumbrance was not then known to S or K. S knew of the repossession of the vehicle at the time of his purchase from K and intended to "get his car back". The obtaining of the vehicle by S from K was, it was accepted, achieved by means of deception (that is, by an implied representation that the cheque would be met on presentation).

52. Murphy J with Fullagar J agreeing, expressed the relevant test posed by the Victorian equivalent of s 86(4)(a) (ACT Crimes Act) as being, at 420 -

... that the Crown had to prove beyond reasonable doubt that the accused himself did not believe that he had in all the circumstances a legal right - not a moral right - to deprive Kapaufs of the motor car.

The subjective aspect of this case was therefore limited to the determination by the jury of the issue whether the accused himself believed he had a legal right in all the circumstances to take the car from Kapaufs. If they were left in reasonable doubt as to this matter then he, the accused, should have been acquitted.

53. His Honour disagreed with Lawton LJ in R v Feely [1973] 1 QB 530, where his Lordship had opined that dishonesty was a particular state of mind not needing definition.

54. Fullagar J agreed with the criticism of R v Feely. In his Honour's opinion, an appreciation of the meaning of "dishonesty" added to obtaining "by deception" is not intuitive. There had been considerable dispute amongst judges in England before 1973, as to whether moral obloquy was required to warrant the characterisation of certain specified conduct as "dishonest".

55. His Honour considered that "dishonesty" was used in a specialised sense in the Victorian legislation. Courts were not to be, or allow themselves to be, set up as judges of morals or moral standards. His Honour said, at 430 -

In my opinion, once the courts of law, properly so called, begin to decide cases, especially criminal cases, according to the judge's own view of abstract justice or of current standards of honesty or morality, respect for the courts will be calculated to decline, with dire consequences of a most fundamental character. Justice would no longer be seen to be done, and a judge would be no better qualified than anyone else to decide the cases.

56. Thus, at 432, his Honour said -

... "dishonestly", in this statute, is used in that sense of "with disposition to defraud" which means "with disposition to withhold from a person what is his right" and in the special context thus imports into the offence the element that the actor must obtain "the property" without any belief that he himself has any legal right to deprive the other of it. (my emphasis)

57. Again, at 435, his Honour said -

... I have concluded that the element imported by the word "dishonestly" into the offence created by s 81(1) is the element that the accused person has no belief that he has a legal right to deprive the other of "the property".

58. The conclusion was stated at 440 and 441 -

... in truth the Crown had to ... negative any belief in the applicant that he was in all the circumstances legally entitled to deprive Kapaufs of possession of the car.

59. McInerney J dissented. His Honour considered that the test applied in R v Feely (supra) should be adopted but concluded that the question of the honesty or otherwise of the appellant's belief had been correctly left to the jury.

60. In Bonollo v R [1980] 2 A Crim R 431, the opinion of the majority in R v Salvo (supra) was supported by the Court of Criminal Appeal (Young CJ, McInerney and McGarvie JJ). "Dishonestly" was expressed as "without a claim of right". The claim of right was expressed as a claim to deprive another of possession in the belief that it did not constitute a criminal or civil wrong. A belief in a moral right to do so would not, per se, excuse an accused.

61. McInerney J acknowledged that his dissenting view in Salvo could no longer be regarded as open and that R v Brow [1981] VR 783 supported Salvo. In that conclusion his Honour concurred with Young CJ. Thus, in his Honour's opinion, to avoid confusion and uncertainty the definition of "dishonesty" adopted by the majority in Salvo should be followed.

62. McGarvie J delivered the leading judgment. The applicant had been the lessee of certain goods. She falsely represented to a financier that she had agreed to purchase those goods and that she owed $30,250 to a company, allegedly the vendor, which, in truth, had no interest in the goods. It did, however, issue false invoices to facilitate the applicant's deception. The financier, believing it had purchased the goods from that company, advanced $30,250 to the company which then paid that sum to the applicant. It was expected by the applicant that, at the expiration of the then subsisting leases of the goods, they would be available for purchase by her at an agreed residual value of $4,820. She intended to repay the financier in accordance with her agreement.

63. However, instead, the applicant got into financial difficulties leading to bankruptcy. The goods when sold netted only $8,000, after payout of the previous leases. Thus, the financier made a considerable loss. The applicant gave evidence that, at the outset, she had intended to honour the existing leases, obtain title to the goods and repay the sum advanced through the company to her. Mr Weinberg (as he then was) for the applicant, argued that a belief in a legal right to obtain property, albeit effected by deception, would suffice to negate dishonesty. That was the effect of Salvo's case. It was, nevertheless, not exhaustive of all such exculpatory states of mind. He submitted that the applicant's belief that the financier would not suffer loss and would have its expected security in due course was such an exculpatory intention.

64. McGarvie J considered that the ratio decidendi of Salvo's case was confined, (at 451)-

... to circumstances in which the issue on the question of dishonesty is one of a belief in a claim of right ...

65. There could, in his Honour's view, (at 453) -

... be cases where a person with no belief in a claim of right obtains property by deception in circumstances where the ordinary citizen is unlikely to regard him as having obtained the property by deception dishonestly.

66. The view of "dishonestly" his Honour favoured was stated at 456 -

... it is my opinion that the constant meaning of the word "dishonestly" in s 81(1) [ACT s 84] is that an accused person, obtaining property by deception, obtains it dishonestly if he is then conscious that by obtaining it he will produce a consequence affecting the interests of the person deprived of it; and if that consequence is one that would be detrimental to those interests in a significant practical way.

67. That latter test finds expression in s 86(4)(b) ACT Crimes Act. The concept of "trivial or negligible detriment" may well have taken the accused in R v Feely out of the category of dishonesty. Certainly, McGarvie J so explained the decision. Thus, his Honour considered, (at 463) -

Where the accused, without agreeing to pay anything in return, by deception obtains property intending permanently to retain it, the consequence to the other person and the detrimental effect of that consequence are normally beyond argument. The other person will have lost his property and obtained nothing in return. Usually, a live issue as to dishonesty can there be raised only by evidence which suggests a belief by the accused that he had a right to obtain the property. The position is different where the accused has agreed to make payment in return for his retention of the property. In such a case, in order to show detriment to the person deprived of the property, the Crown must show something more than that the person has been deprived of the property.

68. On his Honour's analysis, if the applicant had, or might have had, as a reasonable hypothesis, a belief that the financier would suffer no practical or significant loss, her obtaining of the advance, albeit by deception, would not be dishonest. However, in the case of that applicant, it was clearly open to find that even if she intended to repay the money advanced and intended that the financier would not suffer loss, she was aware that her deception had materially adversely affected the interests of the financier and exposed the latter to unacceptable risk of loss.

69. R v Brow (supra) involved a dealer in motor vehicles representing vehicles as unencumbered when sold, knowing that they were encumbered by finance leases, but intending to pay out the leases from the proceeds of the sales he had arranged so that no buyer would suffer loss. The Court of Criminal Appeal (Young CJ, Crockett and Tadgell JJ) held that it was necessary, in order to prove that the consideration had been dishonestly obtained, for the Crown only to negative a bona fide belief in a claim of right. A submission that the appropriation of the consideration would not be dishonest if the accused did not believe that no significant detriment to the purchasers would follow was expressly rejected. Thus, McGarvie J considered that he was bound to dismiss the application despite the view he favoured which would have led to the application being upheld.

70. It should be noted that, though both the Victorian and ACT provisions relating to theft are inspired by the Theft Act 1968 (UK), they are materially different.

71. The definition of "theft" (Vic s 72(1)) is not different from that of "stealing" (ACT s 84). However, the two Acts do differ in respect of the interpretative provisions relating to "dishonest appropriation". The ACT Crimes Act, s 86(4)(b) excludes from the definition of "dishonesty" a case where the accused -

... appropriates the property in the belief that the appropriation will not cause any significant practical detriment to the interests of the person to whom the property belongs in relation to that property.

72. Section 73(2) of the Crimes Act (Vic) 1958 contains no such provision.

73. It is, therefore, apparent that the legislature intended, in enacting s 86 and associated provisions in 1985, to embrace the opinion of McGarvie J in Bonollo in preference to the views of the majority in Salvo and of the courts in Brow and Bonollo.

74. I note that, in Mattingly v Tuckwood (1989) 88 ACTR 1, Kelly J adopted a definition of "dishonestly" as (at 13) -

... a conscious departure from a community standard consciously understood.

75. That standard cannot, however, be inconsistent with the statutory definition provided for in s 86. It ought also to be noted that the rejection by McGarvie J of the approach in R v Feely (supra) and R v Ghosh (1982) QB 1053 was confined to the assertion that "dishonestly" was an ordinary English word which need not be explained to a jury. The result in Feely is, however, supported by the principle enshrined in s 86(4)(b) ACT Crimes Act.

76. It should also be noted that s 86(4) of the ACT Crimes Act does not purport to define what is dishonesty, it merely defines certain situations which are not dishonest even if otherwise they might be so considered.

77. So understood, it is apparent that the primary content of the term "dishonestly" should be considered to be that adopted by the High Court in Peters v R (supra). The test so adopted expressly rejected the test for dishonesty propounded in R v Ghosh (supra), being that the accused knew that he or she was acting dishonestly by the current standards of ordinary, honest persons.

78. Toohey and Gaudron JJ at 503 took issue with that aspect of the Ghosh test which required satisfaction that the accused knew he or she was acting dishonestly by the current standards of ordinary, honest persons. Their Honours said -

... in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent, not whether it is properly characterised as dishonest. To take a simple example: There is ordinarily no question whether the making of a false statement with intent to deprive another of his property is dishonest. Rather the question is usually whether the statement was made with knowledge of its fasity and with intent to deprive.

79. Their Honours accepted at 503-504 that an exception to that statement of principle might well be found, for example, where the accused had made a false statement with an intent to obtain stolen property from a thief and return it to its true owner. In that case the act done would not be characterised as dishonest by ordinary decent people, save insofar as the term "dishonest" is given a special statutory meaning.

80. McHugh J agreed that it was not necessary that an accused, if acting dishonestly, knows that he or she is, in fact, acting dishonestly according to the standards of others. A person will have acted dishonestly if he or she knowingly and intentionally carries out acts which are dishonest by ordinary standards. It is irrelevant whether, in so acting, the accused knew that his or her conduct offended those standards. Gummow J agreed. That test would not allow for the qualification accepted by Toohey and Gaudron JJ that a "white lie" might not be "dishonest".

81. Kirby J disagreed with both judgments, preferring the view Kelly J had adopted in Mattingley v Tuckwood, but supported the opinion of Toohey and Gaudron JJ on the ground that it most closely accorded with his own view. That is, that all that is required for an accused to be acting "dishonestly" was a consciousness by the accused that he or she was acting dishonestly - a fully subjective standard. Thus the majority view that prevailed was that of Toohey and Gaudron JJ.

82. It follows that it is a question of law whether, given that the means used to deprive a person of property are employed intentionally and knowingly, those means would be dishonest.

83. However, Toohey and Gaudron JJ would leave to a jury; (at 508) -

... should an issue arise whether the agreed means are properly characterised as dishonest, that issue should be left to the jury. At least, that is so if the means are capable of being so characterised. And the jury should be instructed that the question whether they are to be characterised as dishonest is to be determined by application of the standards of ordinary, decent people.

84. The present High Court further addressed the issue in Macleod v R [2003] HCA 24; (2003) 197 ALR 333. In that case, Mr Macleod purported to make films and videos and invited investors to contribute. Six million dollars was invested. Only $718,249.27 was used for that purpose, and he caused over two million dollars to be applied for his personal benefit. He offered the hypothesis that he believed the funds effectively to be his and to be monies due to him from the company in which the funds had been invested.

85. Gleeson CJ, Gummow and Hayne JJ at 344, [46] stated -

... there is no requirement that the appellant must have realised that the acts in question were dishonest by current standards of ordinary, decent people. To require reference to a "subjective" criterion of that nature when dealing with a claim of right would have deleterious consequences. It would distract jurors from applying the Peters direction about dishonesty, and it would limit the flexibility inherent in that direction. A direction about the "subjective" element of a claim of right was neither necessary nor appropriate in this case.

86. McHugh J agreed, pointing to the joint judgment of Toohey and Gaudron JJ in Peters at 504. This McHugh J crystallised as requiring that the trial judge must - (at 353)

(a) identify the knowledge, belief or intent which is said to render the relevant conduct dishonest; and

(b) instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest; and

(c) direct the jury that, in determining whether the conduct of the accused was dishonest, the standard is that of ordinary, decent people.

87. That direction is as McHugh J recognised and the Crown concedes, subject to statutory qualification such as is afforded by s 86(4)(a) of the ACT Crimes Act.

88. It is the Crown's submission that -

(i) the issue as to whether the accused, in offering the MR2 to Mr Clearihan for sale, was appropriating it "dishonestly" is a question of fact for a jury; and

(ii) it must appear that the accused had the belief referred to in s 86(4)(a) to avoid that finding if otherwise the appropriation would be so characterised.

89. Each of those submissions is, in my opinion, incorrect.

90. As to (i) it is a question of law as to what knowledge, belief or intent is capable of rendering the conduct of the accused dishonest. The issue as to whether the conduct of the accused as found by the jury was dishonest is for the jury to determine. If there is an issue as to whether, even if the conclusions as to the knowledge, belief or intent are capable of being found to be dishonest, the accused acted dishonestly, it is then a question for the jury applying the standards of ordinary, decent people to determine if the appropriation was in fact dishonest.

91. However, in respect of (ii) (where the statute applies it) the issue is whether the Crown has established beyond reasonable doubt not only the absence of the relevant belief but the presence of a contrary belief. It must be shown that the accused had no belief of a claim of legal right, not merely a state of uncertainty as to whether such a claim could be genuinely made.

92. For present purposes, the issue being whether a stay of proceedings or other relief should be granted, it is not sufficient that the Crown has a prima facie case if, inevitably, a jury properly instructed would acquit.

93. In the present case the accused was told, forcefully, by his father that the MR2 could lawfully be disposed of pursuant to the UG Act. He was aware that his father had written to Mr Vong proposing this course if his claims were not met. The vehicle was sold after a reasonable lapse of time for Mr Vong to have complied with Mr Paul Delly's demand had he wished to do so, or to take legal action himself against Mr Paul Delly to prevent the sale and gain possession of the MR2. Mr Vong took no such action.

94. It is the case that, albeit subject to conditions more onerous than those recognised by Mr Paul Delly, the UG Act does allow the sale of goods belonging to another to meet the lawful claims of the possessor of the goods. The proposal was not proceeded with covertly. It could not reasonably be asserted that Mr Paul Delly, even though mistakenly, genuinely believed he had the right to proceed with the course of action he directed the accused to take. Thus, unless the accused knew that the proposal was unlawful so that he was acting dishonestly in carrying out his father's wishes viz-a-viz Mr Vong, there was no contravention of s 89 of the ACT Crimes Act. That is, there was no "stealing" of the MR2 as, though the sale of the vehicle was an "appropriation" of it (s 86(1)(b)), it was not a dishonest appropriation.

95. If the accused had positively shared his father's belief as to the legality of a sale under the UG Act it is clear that s 86(4)(a) of the ACT Crimes Act would be satisfied. But, as I have pointed out, it is not a provision casting an onus of proof on the accused. Not only must the Crown prove an absence of positive belief in a legal right to sell the vehicle, it must prove the existence of a contrary belief. Indeed, as I have analysed the question of dishonesty in this case, to hold otherwise would create a contradiction between s 84 and s 86(4)(a).

96. Of course, a case could be constructed, omitting all evidence of Mr Paul Delly's activity and state of mind, that the accused had sold for his own financial benefit a vehicle belonging to Mr Vong (whether as Dr Law's representative or otherwise), but that would be an artificial and unfair presentation. Nor does the Crown propose such a case. The Crown, not unfairly, simply raises the objection that Mr Delly was dishonest and had no claim of legal right because, though he did not have a belief that his father's proposal was legally wrong, indeed, he allowed that it might well be right, he considered it morally wrong so to proceed in the case of a family friend such as Mr Vong had been.

97. If a jury was to be summoned and the Crown case presented I would inevitably direct an acquittal. Such a course would be unnecessarily wasteful. The accused does not press for a verdict of acquittal. I, therefore, in the absence of such an application, direct a permanent stay of proceedings on the indictment.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 19 December 2003

Counsel for the Crown: Ms J Whitbread

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: Mr S Whybrow

Solicitor for the Accused: Mr Jeffrey Silk

Date of hearing: 7 October 2003

Date of judgment: 19 December 2003